ABORTION LAWS AND THE ABORTION SITUATION IN INDIA
MALINI KARKAL 4 Dhake Colony, Andheri (West), Bombay 400 058, India Synopsis – Free access to abortion is a woman’s right and a major demand of the feminist movement. The article discusses experiences of Indian women, bearing in mind the background of feminist demands. Over 20 years have passed since the law liberalising abortions was passed in India. Services for abortion are widely provided, and yet it is observed that the actual number of induced abortions is much larger than the number registered under the law. It is observed that abortions are damaging the health of women. In a patriarchal society where women have no rights over their bodies and population control policy is enforced, abortions and abortion services constitute one more instrument for the exploitation of women. Synopsis –
To be able to participate effectively in political and social processes, women must have access to information, choice, and control over reproductive technologies. However, we have seen that as techniques of medically monitoring and managing labour became available, methods of induced abortions were developed. And as methods of controlling fertility became possible the “choices” rapidly became compulsions to “choose” the socially endorsed alternative (Hubbard, 1982, p. 210). In a society that has a high pressure antinatalist policy, a woman who is pregnant is pressured to abort and one who is not pregnant is pressured to control her fertility. The women in societies such as that found in India do not have the choice to
remain single and, having gotten married, they cannot choose when to have the sexual relations that make them pregnant. Nor is the choice to continue the pregnancy or not theirs. In India today many pregnant women make their “only choice” – induced abortions – which may be neither legal nor safe. The antinatalist policy creates an atmosphere that not only pressures women not to choose large families, but pushes the contraceptive programme. Women today are offered the choice of getting information on the availability of contraception or inducing abortions. These choices also are highly restrictive because the methods that are pushed are terminal, such as sterilisation, which limits family size to the demographic goals decided by the officials.
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FAMILY PLANNING LEGISLATION In the First Five Year Plan (1951–1956), a family planning programme was introduced to improve the health of women and children. It needs to be noted that the fertility regulation programme of the International Planned Parenthood Federation was designated as the birth control programme. However the Indian Planners had the welfare of the family in mind and hence the programme was called Family Planning. The programme was a part of Maternal and Child Health (MCH) under the Ministry of Health. Since the Third Plan (1961–1966) was instituted, due to pressures from the international agencies, the objective of the programme has become a reduction in the birth rate. The year 1965 saw a nationwide famine. There was a shortage of rain in the following year as well. India experienced a serious food crisis and the government of United States discussed the food shortage in the country. Coale and Hoover (1958) argued that a high rate of population growth meant a large dependent population, which would lower the rate of economic development and make the task of increasing social welfare exceedingly difficult. The argument was put forth mainly for the low income countries. The 1961 census showed that the rate of growth of the Indian population continued to be high and it was believed that the distribution of contraceptive methods such as a diaphragm and jelly, foaming tablets, and condoms by the family planning clinics was not effective in reducing the birth rate. Use of these methods was largely dependent on a couple’s motivation at each coital act. The discussion between the government of India and the United States authorities therefore led to the introduction of methods such as the IUD, the use of which was unrelated to the sexual act, was provider controlled, and was expected to be more effective in
bringing down the birth rate. To get quick results, services were brought closer to the people through the use of 1,000 mobile units and through the camp approach, in which services were provided to large numbers of individuals at medical facilities. The methods provided were one time motivational methods such as the IUD and sterilisation. The people who accepted these methods, as well as the staff members providing the services, received financial incentives. The incentives to the participants of the camps were larger. Group pressures and mass motivation worked at these camps. The largest camp was held in July of 1971 at Ernakulam in Kerala. The number of men undergoing vasectomy in this camp was 62,913 (Krishnakumar, 1974). The introduction of the camp approach demonstrated an anxiety about the population problem. The achievements of the programme were due to what came to be informally called “coercive persuasion.” The States that took hardest line were Maharashtra and Tamil Nadu. The camp approach was originally developed by the officials of the government of Maharashtra. In Septe mber, 1968, Maharashtra also introduced a scheme of disincentives. In 1976 the State introduced a bill for compulsory sterilisation of couples with three or more children. The bill went through the first readings in the State assembly, but was withdrawn due to national and international pressures. It must be noted that the bill had no opposition from the Central government. Studying the experience of other countries, the Indian government observed that Japan had halved its birth rate in a period of 10 years and the major contribution to this reduction was an increase in abortions. Abortion in India was legal only to save the life of the mother. The provisions of the Indian Penal Code placed India in the category of those countries with highly restrictive abortion laws. Code 312 of the Indian Penal Code provided:
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Whoever voluntarily causes a woman with child to miscarry shall, if miscarriage be not carried in good faith for the purposes of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both, and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Further provisions of the Penal Code provided severe penalties for abortions performed without the woman’s consent, and for infanticide. The wording of Code 312 makes it evident that only strictly medical indications were acceptable and the law, in practice, had been so construed. Until 1971, therefore, abortions in India were governed by the Indian Penal Code of 1862 and the Code of Criminal Procedure of 1898. The latter lays down the procedure to try persons violating the substantive law under the former. The origin of this code was the British Law of the 19th century. ABORTION LEGISLATION On August 25, 1964, the Central Family Planning Board recommended that the Ministry of Health create a committee to study the question of legislation on abortion. The recommendation was adopted late in 1964, and a committee was constituted, with representatives from a variety of Indian public and private agencies. The committee – called Shantilal Shah Committee – issued its report on December 30, 1966. The government decided to liberalise the abortion laws and passed the Medical Termination of Pregnancy Act (MTP Act of 1971). The terminology was specifically designed to make it easy to get the law approved by the parliament. The law was passed as a health measure to protect women from the hazards of untherapeutic abortions. According to the report of the Shantilal Shah Committee, the major concern of the Committee was the hazards of illegal abortions. A questionnaire was sent to a sample of the population, mainly in Delhi, Calcutta, and Bombay. The Committee
received a total of 570 filled-in questionnaires. Of the respondents, 92.3% reported their belief that the incidence of illegal abortions was rising (Ministry of Health, 1966, pp. 67–68). The Committee reviewed available studies on abortion and on the basis of a study conducted in Gandhisram, Tamilnadu, noted, “Some guesses can be made on the magnitude of the problem. If it is assumed that for every 73 live births 25 abortions take place annually, and of these 15 are induced, then in a population of 1000, there may be approximately 13.5 abortions (corresponding to the prevailing birth rate of 39), and of these, 8 will be induced. For the population of 500 million the number of abortions per year will be 6.5 million – 2.6 million natural and 3.9 induced” (Ministry of Health, 1966, p. 18). The International Planned Parenthood Federation had estimated an annual figure of over 5 million illegal abortions in India. The Report added, “abortion accounted for 5 to 10 percent of the group deaths of which two-thirds to three-fourths were with sepsis.” The Committee therefore recommended that, “It is this shear, futile wastage of mother’s health, strength and perhaps life, and of medical skill and resources – that has made some doctors and lay people demand that the question of illegal abortions be reviewed as a whole. Deep compassion at the suffering involved and exasperation at the wastage that occurs, have both played their part in such demand” (Ministry of Health, 1966, p. 39). The Committee specifically denied that any part of its intention was to press for the legislation of abortion for the sake of population control. It also accepted that there did not exist and would not exist in the foreseeable future either the doctors or the medical facilities to support an extensive abortion programme. The Committee further emphasized, “it is felt, that legalising abortions with a view of obtaining demographic results is unpractical and may even defeat the constructive and positive practice of family planning through contraception”(Ministry of Health, 1966, p. 47).
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A passage in the Report of the Committee, despite the fact that the Committee was fully aware of the limitations of the Indian situation in providing therapeutic abortions, may be of interest to the readers: It must be made quite clear – that the words “family planning” connote the control of conception which does not include abortion which takes place after conception. However, abortion also can be used as a means to control family size as is being done currently in several countries in which case, family planning or contraception and abortion, are in the parallel categories, both of which can lead to population control. (Ministry of Health, 1966, p. 29) The law recommended by the Committee included in the medical indications for abortion possible grave injury to the physical or mental health of the woman (before, at, or after birth) and added a fetal and a humanitarian (e.g., rape) indication. The law also required approval of only the operating doctor within the first 3 months of pregnancy (Ministry of Health, 1966, pp. 51–52). Opposition to the liberalisation of the law from Catholic sources, although in the minority, was still well organised. Some, from Hindu, Muslim, or Jain sources and even from medical sources, was foreseen by the Central Family Planning Board. In constituting the Committee, therefore, it gave representation to many important medical and social groups in the country. In making its recommendation, the Committee considered the likely parliamentary reaction. Support for liberalisation was expected because of the widespread acceptance of the family plan-ning programme and because evidence suggested that fairly large numbers of women were taking recourse to abortions even at the rural level. It must be added here that the Committee termed the legislation
“Medical Termination of Pregnancy” to reduce the opposition from the groups that were averse to liberalisation of abortions. Among the proponents of the law were two groups, one that saw the hazards experienced under restrictive laws and the other that believed in a woman’s right to decide about her own life – including the right to continue with a pregnancy to full term or terminate it. The women’s movement, however, was not established and there were no strong feminist groups that advocated liberalisation of abortion laws in the interest of the women’s rights. Data available from countries with better medical facilities and healthier populations, such as Japan, indicated that the mortality and morbidity rate from legal abortions is lowest in a permissive system. Crude methods, incompetent abortionists, and unsanitary conditions, which are normally present in countries such as India, are at the root of many maternal deaths in illegal abortions. On the whole, deaths and injuries are higher in a restrictive system than in a permissive or a moderate system. Medical opinion is clear about the fact that early abortion, competently performed under proper therapeutic conditions, is less risky, sometimes even less dangerous than carrying a pregnancy to term. Development of newer techniques in medical science also help to reduce complications. However, under the best of circumstances, the interruption of a first pregnancy, especially in a teenager, is liable to result in injuries that create complications for future conception. Risk is also expected to increase due to repeat abortions, especially those done after short intervals. There was also awareness that under permissive laws some couples tend to rely on early, safe, and comparatively cheap abortions rather than undergo the trouble, expense, and inconvenience of contraception.
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Health in India is a State subject and therefore the State must make any decisions regarding implementation of health legislation. Of the 22 States and 9 Union territories, the MTP Act of 1971 came into force in April of 1972 in all but three States and the Union Territory of Lakshadweep. In Jammu-Kashmir and in Mizoram, the law was enforced beginning April 1, 1980. The State of Sikkim and Lakshadweep even today continue with old restrictive law. The Law was patterned after the British Abortion Act of 1967, with the important additions that the pregnancy alleged by a woman to be the result of a rape, and, in the case of a married woman, a pregnancy resulting from contraceptive failure, may be presumed to constitute a grave injury to the mental health of the woman. Thus the Indian MTP Act of 1971 provided legalisation of abortion for broad health reasons, for eugenic reasons, under juridical conditions such as rape or incest, and for social reasons such as mental or social injury to the mother. In summary the law was passed as a health measure that was expected to provide therapeutic abortions to the large numbers (estimated by the Shantilal Shah Committee to be about 3.9 million per year) of women who were taking recourse to illegal abortions. The current Indian abortion law is recognised as one of the most liberal ones. The main question that needs to be debated is whether the liberalisation of the law has helped to reduce illegal abortions and to improve the health of Indian women. The role of the abortions in the context of the national policy of population control also needs to be discussed. INCIDENCE OF ABORTION According to available statistics, the number of institutions approved for providing abortion services has increased from 1,877 in 1976 to 6,291 in 1989. Similarly, the number of abortions registered have increased from a mere 25 in the year 1972 to 1973 to 582, 156 in 1988 to 1989. The data on abortions,
available through government sources, covers the 18 years since the law was enacted. The number of abortions registered during this period was 6,388,064 (see Table 1). This figure is far smaller than the estimate of 3.9 million per year, which brings the number to 70.2 million, and is nowhere near the number estimated by the International Planned Parenthood Federation. One estimate reports that in India 5 to 6 million abortions are conducted every year by practitioners who have no training and conduct the abortions in unhygienic conditions and by unscientific means (Goyal, 1978). It is therefore obvious that large numbers of abortions continue to be performed outside the law. In urban areas, a small number of these are performed by qualified medical practitioners who have not obtained registration under the law. However, a large number are performed by unqualified abortionists. Informed sources estimate that in rural areas there are three abortions performed for every abortion registered. In urban areas this ratio is estimated to be 4 or 5 to 1. A 6-year study of obstetric admissions in a hospital gave an incidence of 17% terminations (abortions). Of these, 59.3% were first trimester and 40.7% second trimester (Sola-purkar & Sansam, 1985). Other studies also show that women take time to decide to go for abortions. This must be noted because efforts are being made to promote methods such as RU486, which can only be used for early abortions. In the Greater Bombay metropolitan area about 200,000 births are reported each year. Against this figure, the number of registered abortions is about 50,000 and an estimated about 200,000 to 250,000 abortions are performed outside the law. It is important to note that the average parity at delivery in Greater Bombay is 2.07, that is, the women in Greater Bombay are having, on an average, just over 2 children, which is not much higher than the goal of the national family planning programme. So abortions play an important role in fertility regulation in the lives of the Indian women.
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Table 1. Year by year medical termination of pregnancies performed since inception of the programme – all India No. of institutions approved No. of Terminations for MTP work done Year 1 2 3 April 1972 to March 1976 1,877 381,111 1976–1977 2,149 278,870 1977–1978 2,746 247,049 1978–1979 2,765 317,732 1979–1980 2,942 360,838 1980–1981 3,294 388,405 1981–1982 3,908 433,527 1982–1983 4,170 516,142 1983–1984 4,553 547,323 1984–1985 4,921 577,931 1985–1986 5,528 583,704 1986–1987 5,820 588,406 1987–1988 6,126 584,870 1988–1989* 6,291 582,156 Cumulative total since inception of the programme up to March, 89 6,388,064 Source: Ministry of Health and Family Welfare, Government of India, 1990, Family Welfare Programme in India, Year Book 1988–1989, p. 208. *Figures provisional. As the government reports show, abortions registered under the MTP Act are reported under the family welfare or the fertility regulation programme, thus negating the argument that abortions will not be a part of the population control programme. The fact that the government has no programme to educate the women about the hazards of induced abortions – legal or otherwise – amply proves that the Act was not passed with the intention of providing women with the power of “choice” over their fertility. It also should be noted that the report of the Health Ministry mentions that “by making MTP services available to women and combining the procedure with contraception the objective of spaced children and small family can be achieved” (Ministry of Health, 1990, p. 61). This indicates the change in the stand of the Ministry that was stated in the recommendations of the Committee. The Committee had recommended that the doctors should encourage women to accept contraception, preferably methods such as IUDs and sterilisation, which are either long acting or permanent. The available data shows that, of the total women who went for abortions in 1978 and 1988 (the latest available data), 29.2% accepted sterilisation, 18.8% accepted IUDs, and 52% did not accept any contraception (Ministry of Health, 1990, p. 211). The data also show that the incidence of abortion is higher among women who accepted the procedure earlier. Because the health hazards for repeat abortions are higher, it is obvious that the Act in practice does not operate as a health measure for women.
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A study of abortions in the cities of Patna, Bhubaneswar, and Baroda showed that 67% of the women who came for abortions had achieved their desired family size and did not want an additional child. About 27% reported that their last child was too young and 17% of these wanted to space the next pregnancy (Khan, Patel Bella, & Chandasekar, 1990). This indicates that abortions, and majority of them illegal ones, are playing an important role in regulating the family size of the couples. As discussed earlier, abortions do have inherent hazards and the incidence of illegal abortions continues to be high despite liberalisation of the law. The fact that abortions are available under the law seems to have encouraged larger numbers of women terminate their pregnancies. This finding supports the fact that women do not want large families but do not have satisfactory ways to regulate their fertility. It is therefore necessary to look at the family planning programme and how it is operated.
the possible temporary side effects.” The data on women who accept contraceptives show that among those sterilised over 85% are women. Also, among the users of other contraceptive methods, women bear the major burden as these methods are: oral pills, diaphragms, and foam tablets. The only male method (besides vasectomy) is the condom and it is less frequently used although actual data on the use of freely distributed condoms is not known. Khan et al. (1990) further note, “Cleanliness of the operation theatre and proper sterilisation of instruments require special attention to ensure asceptic conditions as 16 out of the 367 sterilisation acceptors developed infections at the site of the operation, and complained about it at the interview.”
ABORTION MORTALITY RATES
Overlooking the fact that liberalisation of the law must have helped many women who would not have otherwise gone for abortions to overcome their FAMILY PLANNING SERVICES fears and general opposition to Family planning services in India are termination of pregnancy, these abortions completely free and those taking often take place under unsafe conditions. advantage of facilities through the This is evident from the fact that abortion widespread government services actually is certified as a cause of death for a get financial incentives. As of March 31, surprisingly large number of women. 1988, the latest time for which data are Data of the Ministry (Ministry of Health, available, there were 2,168 Primary 1990, p. 212) consistently show that even Health Centres and 109,644 subcentres for the registered abortions the maternal catering to the health needs of the rural mortality is 0.1 per 1000 – a figure much populations, as well as providing free higher than is reported by other countries family planning services. The health with liberal abortion laws. Maternal needs of the urban populations are the mortality, or death due to pregnancy, are responsibility of the Municipal around 20 per 100.000 births even in many of the developing countries. Corporations. Regarding the quality of family Available data for India indicates that the planning services available through the figure may be around 500 per 100,000 clinics Khan, Patel Bella, & Chandasekar births. Of these nearly 56 are due to (induced as well as (1990b) say that, “the study revealed that abortions the quality of counselling at the public spontaneous). If nothing else this high clinics is very poor. Most of the mortality rate is indicative of the poor respondents are neither informed about health of Indian women. There are no data other (other than sterilisation and IUD) on the injuries to the health that Indian family planning methods nor told about women suffer due to abortions. Abortions
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are known to cause several gynaecological problems and complications in following pregnancies. How many maternal deaths are caused by the aftereffects of abortions is not known. It is important to note that in a city like Greater Bombay a survey of outpatients in six hospitals, chosen to represent those in the city and representing different types of sponsorships, showed that the single largest majority, 20% to 36% of the total 23,244 O.P.D. cases examined, was of women with obstetric and gynaecological disorders. And this is despite the fact that there is evidence to show that women are less likely to go for medical attention than men. The low ratio of women to men in urban populations is reversed among hospital cases for the age group 15 to 44 years because too many women in these age groups have health problems and 50% to 80% of these problems are obstetrical and gynaecolosical (Runbeck, 1983). CONCLUSIONS In discussing the issue of abortion in India, a few recent developments need to be taken into account. There are international pressures on the government to control the population. These pressures will increase as the population count figures from the census become available. The decadal census count of March 1991 has now been made public. The figures indicate that the population growth rate has shown insignificant change from the last decade (2.11% per annum compared to 2.22 of the last decade). There is already a serious debate on the unsatisfactory performance of the family planning programme. This, as experience shows, is sure to result in a more vigorous family planning programme. Efforts to promote methods of contraception have not show very encouraging results. In such a situation the availability of a method such as RU-486 for inducing abortions is likely to be encouraged. The Population Council has already introduced RU-486 on an experimental basis in some of the clinics.
These clinics, which operate under highly controlled conditions, have already started giving favourable responses (Coyaji, 1990) and are encouraging the use of RU-486. In addition to the population control promoters, the pro-abortion movement in developed countries is keenly interested in access to RU-486. It is not surprising that the favourable response from the researchers in India is welcomed by these groups. However, there is a vast difference in the situations of these two groups. Introduction of a method such as RU-486 to a population in which the average woman’s haemoglobin count is 7 and in which the decision to have an abortion is still hindered by psychological reservations and, consequently, made only in later stages of pregnancy, can be disastrous to the health of women. An analysis of the Indian abortion situation shows that introduction of a liberal law in a country where women have little say in most matters and where there is no strong health education programme can only defeat the purpose of defending women’s rights. And in a country where a national programme encouraging smaller families is in full force, one can only expect a rising number of abortions resulting in hazards to women’s health. REFERENCES
Coyaji, Banoo. (1990). Safe motherhood and RU486 in the third world. IPPF People, 17(3), 13–15. Goyal, R. S. (1978). Legalisation of abortion: A social perception. Health and Population: Perspectives and Issues, 1, 302–308. Hubbard, Ruth. (1982, Spring). Some legal and policy implications of recent advances in prenatal diagnosis and fetal therapy. Women’s Rights Law Reporter. Khan, M. E., Patel Bella, C, & Chandrasekar, R. (1990a, September). A study of MTP acceptors and their subsequent contraceptive use. Journal of Family Welfare, 36(3), 70–85. Khan, M. E., Patel Bella, C., & Chandrasekar, R. (1990b, September). Contraceptive use dynamics of couples availing of services
The Abortion Situation in India from government family planning clinics – A case study of Orissa. Journal of Family Welfare, 36(3), 37. Krishnakumar, S. (1974, February). Ernakulam’s third vasectomy camp using the camp approach. Studies in Family Planning, 2, 58–61. Ministry of Health and Family Planning, Government of India. (1966). Report of the Committee to Study the Question of Legalisation of Abortion. Ministry of Health and Family Welfare, Government of India. (1990). Family
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Welfare Programme in India, Year Book 1988–1989. Runbeck, Janet K. (1983). An analysis of the obstetrical-gynaecological disorders of Bombay women. Seminar paper submitted as a part of requirement for certificate course in Population Studies, International Institute for Population Studies, Bombay. Solapuriar, M. L., & Sansam, R. N. (1985, March). A 6-year study of admissions in a hospital. Journal of Family Welfare, 37(3), 47.